State v Major Tenders Board, Ex parte Fiji Broadcasting Corporation Ltd [2004] FJHC 78; HBJ0006R.2004S (25 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 0006R OF 2004S

BETWEEN:

THE STATE

-v-

THE MAJOR TENDERS BOARD
RESPONDENT

EX-PARTE: FIJI BROADCASTING CORPORATION LIMITED
APPLICANT

COMMUNICATIONS FIJI LIMITED
1ST INTERESTED PARTY

THE CHIEF EXECUTIVE OF THE

DEPARTMENT OF INFORMATION,
MEDIA RELATIONS AND COMMUNICATIONS
2ND INTERESTED PARTY

Counsel for the Applicant: Ms G. Phillips: Munro Leys & Co.
Counsel for the Respondent J.J. Udit
Second Interested Party Ms K. Naidu, Attorney-General’s
Counsel for the 1st Interested Party: H. Lateef: Lateef & Lateef

Date of Ruling: 25 March 2004
Time of Ruling: 12 Noon

EX-TEMPORE RULING

This is an application for leave to review the decision or recommendation made by the Major Tenders Board that resulted in the award of the Hindi language service broadcast, to Communications Fiji Limited, the 1st Interested Party in this proceeding.

It is opposed by the Board as the Respondent, and the 1st Interested Party (Successful Tender) and 2nd Interested Party, (Chief Executive of the Ministry of Information Media Relations and Communication).

The thrust of the Applicant’s argument is that the decision of the Respondent was ultra vires the Supplies and Services Instructions as well as the Government Stores Instructions 1982. Specifically the Applicant argues, the Respondent, by accepting the 1st Interested Party’s tender, did not conform to the specific requirements of the tenders documented. The requirements were that the tenders should include the following: one for an exclusive Fijian language service, one for an exclusive Hindi language service, and a third package to include both languages. Instead, the Respondent entertained a single tender for the Hindi language service from the 1st Interested Party.

There are additional grounds advanced by the Applicant including the failure by the 1st Interested Party to tender for the provision of service for the period 2004 – 2006 and such service to commence from 1 January 2004, as specifically required under the tender conditions and the alleged failure of the 1st Interested Party to confirm the requirement of national coverage rather than to the Hindi speaking market only.

Opposing leave, the Respondent argues that the only action that is susceptible for review is that of the Ministry of Information which at the end makes the final decision on whether a tender is successful or not. The Respondent’s role is merely an advisory one. According to the affidavit of its Chairman, Mr Shiri Chand, its major function is to shift through tender documents, and then advise the responsible Ministry “on the respective bids in line with the Financial Act, Regulations and Instructions.” Under the circumstances, the Respondent claims, it has been wrongly joint as a party in the proceeding.

Counsel for the successful tender, Communications Fiji Limited, the 1st Interested Party, main argument in opposing leave is the lack of merit in the application. Counsel’s view, the 1st Interested Party had fully complied with the tender specifications. The Company, in accordance with the requirements of the Regulations had sought and obtained clarifications, which enabled it to put forward a tender that catered exclusively for the Hindi speaking service. There cannot be any arguments therefore, that the 1st Interested Party had not conformed to the tender requirements.

Secondly, Counsel argued that Applicant had sufficient time from the date the award of the tender was announced, to take judicial review. Yet it was not until 24 February 2004 when it was finally moved to act and filed the review. In the meantime, the 1st Interested Party had gone ahead and expended considerable money and resources in preparation for opening of its service scheduled for 1 April 2004. In this regard Counsel referred the Court to the FCA judgment of Harikisun Ltd. v. Dip Singh & Ors. (FCA No. 19/1975) which raised, as an important factor in the exercise of a Court’s discretion, whether to grant leave or not, the question of delay as well as the reasons for bringing the action. Leave under the circumstances, could only be granted if the grounds are not frivolous, vexatious “or hopeless in the sense of being patently devoid of merit” see: National Farmers Union v. Sugar Industry Tribunal & Ors. (FCA No. 8/1990).

It is patently obvious to this Court that grievance of the Applicant stems from what it considers are very clear and unambiguous wordings of the tender documents. Paragraph 3 headed “General Information” of the “Guidelines for the Preparation of Public Service Broadcast Tender” states:

“Suppliers are invited to tender for the provision of PSB programmes in Fijian and Hindi as a package.

Suppliers are also required to tender for PSB programmes in each of the two vernacular languages Fijian and Hindi separately.”

The issue of whether these requirements should be read conjunctively or are separate of one another, “stand alone” as Counsel for the 1st Interested Party aptly puts it, goes to the very heart of whether this Court should grant the application, notwithstanding the submission by the Respondent’s counsel. It goes to the issue of procedural irregularity of the action taken by the Respondent. In my view, the Applicant has an arguable case.

The submission that the Respondent is not the appropriate party to this proceeding depends in the end on the argument, whether the Major Tenders Board’s so-called recommendation to the Ministry of Information constitutes a decision and whether such a decision possesses an air of finality.

These matters are appropriately left to the substantive review of this application.

In the end, having had the benefit of the affidavit evidence as well as submissions by Counsel, leave is hereby granted to the Applicant. There will be a Stay until this Court decides on the Substantive Application.

Costs in the course.

F. Jitoko
JUDGE

At Suva
25 March 2004